UK – Scotland

How can you prepare child relocation from or within the UK – Scotland? What if your child has been relocated without your consent?

Scotland is a country located in the continent of Europe and is one of the four constituent countries that form the United Kingdom (UK). Scotland has its own legal system including family law which encompasses child relocation cases.

Summary of applicable laws:
Scottish domestic legislation for child relocation cases is mainly found in the Children (Scotland) Act 1995 and Scotland also uses case law to determine cases.

Within the UK, the Family Law Act 1986 has different sections for Scotland and England & Wales which can be used to deal with the recognition and enforcement of child orders intra UK.

Since Brexit the UK, including Scotland, is no longer a member state of the European Union. For family law specifically, this means that Council Regulation (EC) No 2201/2003 of 27 November 2003 and its replacement Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) are no longer valid in Scotland for cases initiated after 31st December 2020.

The UK and hence Scotland, is a Contracting State to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Parental Responsibility and Protection of Children. Scotland has its own Central Authority that deals with all incoming and outgoing 1980 Hague convention cases.

The UK, including Scotland, has a Judicial Protocol with Egypt (Cairo Declaration) and with Pakistan (Pakistan Protocol).

I will now go into further detail on how Scotland deals with child relocation and parental child abduction cases.

Country Reporter:

Marisa Cullen

Marisa is partner at Family Law Matters Scotland LLP in Glasgow.

She is an expert in international family law and child abduction cases.

Marisa has volunteered to keep this page about the UK – Scotland up to date.

Lawyers and mediators in UK – Scotland

We provide a list of lawyers and mediators in Scotland who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.

Parental authority: UK – Scotland

Authority

In Scotland, parents have legal rights and responsibilities in relation to their children which we refer to as parental rights and parental responsibilities or “PRR’s”. Child orders can be made until a child is 16 (although we have some child laws that apply up to 18) which includes a court order allowing one parent to relocate with their child.

Who has PRRs?

• The biological mother of the child will have automatic PRRs unless these have been removed by virtue of a court order.
• The father if he is married to the child’s mother.

An unmarried father can have PRRs if:
• He is registered on the birth certificate and the child was born after May 2006
• If he and the mother make and register a Parental Responsibilities and Parental Rights Agreement (s.4 Children (Scotland) Act 1995)
• He has obtained PRRs by virtue of a court order.

PRRs can also be gained by parents following fertility treatment. Courts may also grant PRRs to others who are entrusted with the care of the child including other family members, an adoptive parent or a local authority.

See Children (Scotland) Act 1995, Human Fertilisation and Embryology Act 2008, and Adoption and Children (Scotland) Act 2007 for more information.

What do PRR’s provide for?

They include the responsibility to:
• Safeguard and promote a child’s health, development and welfare,
• Give the child direction and guidance suited to their stage of development,
• Maintain a personal relationship and contact with the child, and
• Act as their legal representative

All insofar as it practicable and in the best interests of the child. Having said responsibilities gives parents interrelated rights to allow them to fulfil their responsibilities, including the right:
• to have the child living with him or otherwise to regulate the child’s residence;
• to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing;
• if the child is not living with him, to maintain personal relations and direct contact with the child on a regular basis; and
• to act as the child’s legal representative.

After Divorce

After divorce both parents retain PRRs. Only in very rare circumstances will the court find it necessary for PRRs to be removed from one or both parents.

1980 Hague Convention

Persons with PRR’s in Scotland will have rights of custody for the purpose of Art 5 of the 1980 Hague Convention.

Traveling with children: UK – Scotland

Consent

Section 2(3) of the Children (Scotland) Act 1995 states that, unless there is a court order regulating the matter, no person is entitled to remove a child who is habitually resident in Scotland outwith the UK without the consent of the other parent (presuming they have Parental Rights and Parental Responsibilities). Such rule applies up until a child is 16.

Specific Issue Order

If the other person refuses to provide their consent, the parent wishing to travel outwith the UK requires to seek a Specific Issue Order from the court allowing them to travel.

In practice, many separated parents enter into contracts called “minute of agreements” which provide time limited consent in writing for parents to take a child on holiday out with the UK for the purpose of a holiday.

Interdict against removal

If you do not wish to provide consent and have reason to believe the child is not legitimately being taken on a holiday but rather being permanently relocated from Scotland under the guise of a holiday, it is possible to seek an Interdict against Removal from the court and taken together with a UK wide port stop, such orders should prevent the child leaving the UK. This will not prevent the child being moved within the UK as no borders are present but courts within the constituent countries of the UK do tend to enforce one another’s child court orders.

Child relocation: UK – Scotland

Consent

Where a person with PRRs in respect of a child wishes to relocate with that child they must obtain consent from anyone else with PRRs in respect of the child.

Intra UK Relocation

When a person seeks to relocate with a child within Scotland, or to another part of the UK, the Children (Scotland) Act 1995 does not explicitly require them to get consent from the other holder (or holders) of PRRs. However, in most cases the party wishing to relocate will still need to raise an action to seek an order permitting the move. If an action is not raised by the party seeking to relocate, the party who opposes the relocation can raise an action seeking an interdict against the child’s removal from the jurisdiction pending further orders of court. An action may be required in any event to vary any court orders already in force which would no longer be practical if the child relocates.

Relocating a child to a different part of the UK without permission of the other parent or person with PRRs is not a crime.

Relocation of a child out of the UK

If the person who wants to relocate intends to move to a country outside the United Kingdom and does not have the consent of the other holder (or holders) of PRRs, they must obtain an order from the Scottish courts allowing them to move, known as a specific issue order. The action can be raised in either the sheriff court where the child is habitually resident or the Court of Session (Scotland’s highest civil court). Again, orders such as interdict against removal can be sought if the relocation is opposed by another person with PRR’s.

Relocating a child out of the UK is a crime in certain circumstances which I consider further below.

Guiding Principles in Relocation Actions

A relocation case is a balancing act in which the court must weigh up all the relevant factors and consider various principles as follows:

1. Welfare of the child is paramount
When considering whether to grant a specific issue order allowing relocation the court must regard the welfare of the child as its paramount consideration. The court will not make any order unless it considers it would be better for the children that the order be made than no order at all.

See S.11(7) Children (Scotland) Act 1995 and GL v JL [2017] CSOH 60.

2. No legal onus of proof
As with any action in which a child related order is sought, the party seeking an order allowing relocation does not have to discharge a legal onus of proof to be successful. Instead, the court must consider all material before it and decide what is best for the child’s welfare (see White v White 2001 SC 689). However, where one party seeks to alter the status quo they must provide the court with enough evidence to justify the change (see SM v CM 2011 CSIH 65).

3. No presumption in favour of resident parent
In contrast to precedent set in English law (principally in the case of Payne v Payne 2001 EWCA Civ 166), the paramount consideration when considering a child relocation application must be the welfare of the child. The case must be judged without any pre-conceived presumption in favour of either parent, whether the parents share the child’s care or one parent is the primary carer. (see SM v. CM [2011] CSIH 65 [para 52-53])

4. Cooperation between parties
The court must consider whether the parties will need to co-operate if the order is made. This can be a deciding factor for the court. If the evidence demonstrates that the party seeking the order cannot be trusted to co-operate with the other parent and promote contact, even when they are both living in Scotland, this will weaken the case for relocation. (See S.11(7D) Children (Scotland) Act 1995)

5. Views of the child
Children must be given an opportunity to express a view in matters that are material to their welfare if they wish to do so, including relocation actions. The court must consider any views expressed, having regard to the child’s age and degree of maturity (see Section 11(7)(b) Children (Scotland) Act 1995). The Inner House of the Court of Session has previously held that the failure to give a child the opportunity to express a view at the time the order was made contributed to the relocation application being refused. (See S v. S 2002 SC 246)

Scotland has a new piece of child legislation that will soon be fully enacted, The Children (Scotland) Act 2020, which will introduce new provisions on obtaining the views of the child.

Case law

Factors that may be considered by a court when considering a child relocation case can also be found in previous caselaw. The Scottish case that is often referred to is M v. M 2008 Fam LR 90. The list of factors narrated in that case are:

• The reasonableness of the proposed move.
• The motive of the parent wishing to move the child (but even where the motive is genuine it will be difficult to justify a relocation order if the child is thriving in the status quo – SM v CM, at paragraphs 52 and 53).
• The importance of contact with the non-resident parent.
• The importance of the child’s relationship with siblings, grandparents or other extended family who will be left behind.
• The extent to which the left-behind parent and other family members can maintain contact.
• The extent to which the child may gain from family relationships as a result of the move.
• The effect of the move on the child.
• The effect of refusal of the move on the child.
• The effect of a refusal of the order on the applicant, especially where that parent has a residence order (bearing in mind that there should be no preconceived leaning to either parent).

Child abduction: UK – Scotland

International parental child abduction

International parental child abduction occurs where a person with rights of custody (normally a parent of the child or in Scotland a person with PRRs as discussed above) removes their child from their country of habitual residence (or retains them outside their country of habitual residence) without the consent of either:
• Any other person who holds rights of custody.
• The court of the child’s habitual residence.

There are two main conventions that cover international parental child abduction and which Scotland operates:
• The 1980 Hague Convention.
• The 1996 Hague Convention.

In Scotland we mostly commonly see cases arise which are dealt with under the 1980 Hague Convention.

Children can be abducted to Scotland from countries that are not signatories to either of these Hague Conventions (non-convention abductions). Seeking return of a child to a jurisdiction that is not subject to the Hague conventions would require to be achieved via a Specific Issue Order in the Scottish Courts.

Scottish Government

The Scottish Central Authority “SCA” is a department of the Scottish Ministry of Justice and deals with all enquires relating to international parental child abduction. If a child has been abducted from Scotland to another country that is a signatory to the 1980 Hague Convention and the convention operates between the two countries, the SCA can be contacted and can arrange to send an application for return of the child to the other country’s central authority.

If the child has been abducted to Scotland from a country where the 1980 Hague convention can be utilised, the foreign country’s central authority can send an application for return of the child to the SCA. The SCA will then appoint a Scottish solicitor to act for the parent from whom the child has been abducted and will send the solicitor the application form that they have received from the foreign jurisdiction.

Countries which are not signatories to either the 1980 or 1996 Hague Convention are more difficult to deal with in parental child abduction cases but specialised help from Scottish family lawyers should always be sought.

Court Procedure in Scotland

All 1980 Hague Convention cases in Scotland are heard in the Court of Session in Edinburgh. Once we have the address of the child and alleged abducting parent (if available – The Child Abduction Act 1985 has provision for disclosures orders to try and find the whereabouts of the child), the Scottish solicitor will instruct an advocate to raise a Petition for a return under the 1980 Hague Convention. Proceedings should (and normally) do take around 6 weeks from the lodging of the Petition to the judgement but the initial judgement can be appealed (within 21 days of its issue) to the Inner House (appeal court). Appeal can take 2 – 3 months. The appeal will suspend the return order.

For cases involving return of a child from Scotland to a non-Hague convention country, a court application for a specific issue order under the Children (Scotland) Act 1995 can be raised in either the child’s local sheriff court or the Court of Session. This procedure can take much longer, usually 6 – 9 months and there is also an appeal route but there are different rules on whether the order will be suspended pending the appeal.

Children’s participation

It is mandatory for children’s views to be taken into account if they are of an age and level of maturity at which they can express their views in any form of parental abduction case. Normally their views are taken via a child welfare reporter, an independent family law solicitor/advocate who will speak with the child. Children may also appoint their own solicitor/advocate to represent them and the court, in non-Hague cases, can appoint a curator-ad-litem to represent the best interest of the child.

Mediation

Mediation is available in Scotland for all child cases. Specialist family law advice should be sought prior to undertaking mediation in the context of cross border mediation.

Execution

It is within the discretion of the court when any return order granted under the 1980 Hague Convention is executed. It is normally within 14 days of it being granted. The court will direct which parent is to return the child and if they do not, the Scottish court can grant an order for sheriff officers to locate the child and give him/her to social workers for onward transmission to the parent who will return them.

Prevention

If you fear that your child will be abducted from the Scotland to another country various measures can be taken:
• You should consider where the child’s passport is kept, and whether this should be retained by your or your solicitor.
• You should consider whether the child is entitled to any other passports that the other parent may be able to apply for on their behalf.
• You may wish to discuss immediate court orders with your solicitor to prevent the removal the child.
• You may wish to discuss port stops with your solicitor which should stop the child from leaving the UK.
• You should contact the police but it is unlikely they will act if it is a person with PRR’s removing the child unless it is in breach of a court order.

See the Reunite Prevention Guide for more advice.

Legal aid

All parents who have applied through the Scottish Central Authority to have their children returned to them under the 1980 Hague Convention automatically qualify for Scottish Legal Aid. This is non-means tested and will allow the Scottish solicitor’s and advocate’s fees and outlays to be met by the Scottish Legal Aid Board.

Legal aid is available in Scotland for all family cases, including specific issue orders, if you meet the means and merits test. For eligibility see the SLAB website.

Criminal law : UK – Scotland

It is important to note that the law in Scotland and the law in England and Wales differ on this point. In Scotland, a criminal offence of child abduction can only be committed where a person connected with a child under 16 takes or keeps that child out with the UK in breach of a UK court order dealing with the custody of the child or prohibiting a child’s removal from the UK.

See the Part II Child Abduction Act 1984.